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Disciplinary law: the absence of remorse as an aggravating factor

 In a judgement rendered in February 2017, the Superior Court confirmed that it is not always appropriate to refer to related laws or decisions taken by other Disciplinary councils in order to render a verdict or impose a penalty in any particular case. In addition, the Superior Court reaffirms that the absence of remorse shown by the professional convicted cannot constitute, in itself, an aggravating factor that can be invoked to justify a harsher penalty or sentence (Mercier v. Tribunal des professions, 2017 QCCS 361).

THE FACTS           

In July 2013, twenty-eight dentists received notification of a disciplinary complaint consisting of 3 counts, accusing them of having violated several dispositions concerning advertisement found in the Code of Ethics of Dentists and the Professional Code. The twenty-eight dentists all worked for an enterprise that had launched an advertisement campaign that did not, according to the syndic of the Order, respect the applicable dispositions in such matters. In April 2014, the Disciplinary council found them guilty and condemned each of them to a $1000 fine per count.

On appeal, the Professions Tribunal dismissed both the appeal presented by the dentists regarding their guilty verdicts and the penalty imposed, and the appeal presented by the syndic regarding the penalty alone. The Professions Tribunal found that the Disciplinary council had not committed any unreasonable errors in the circumstances.

The dentists decided to present an application for judicial review before the Superior Court, and contest the reasonability of the fines imposed by the Disciplinary council. To do so, the dentists invoked that the Council had illegally taken into consideration their absence of remorse as an aggravating factor.  

THE SUPERIOR COURT’S DECISION

After having considered the arguments invoked by both parties, the Superior Court draws the following conclusions:

1.    The interpretation of a related law given by a Disciplinary council of another professional order is not necessarily relevant in order to interpret the scope of a disposition found in a different code of ethics.

2.    As is the case in penal law, the demonstration of remorse by the professional, in disciplinary matters, constitutes a mitigating factor that, like a guilty plea, can justify a more lenient penalty.

3.    However, it remains generally accepted that the absence of remorse does not necessarily constitute an aggravating factor that can be invoked in order to justify a harsher penalty.

4.    This being said, the Disciplinary council or tribunal cannot blame a professional for having required the holding of a trial or having continued to deny his guilt, and even less so, when an appeal has been filed.  

5.    In addition, the position adopted by the professional during the conviction and penalty hearings and the defense he chooses to present cannot be treated as if they were aggravating factors.

6.    To consider only the absence of remorse as an aggravating factor when deliberating on the penalty to impose, constitutes a revisable error in law. 

7.    However, when the absence of remorse is not the only aggravating criteria considered and retained by the Disciplinary council during the imposition of a penalty, there is no unreasonable error that can justify a judicial review by the Superior Court.

THE LESSONS TO BE LEARNED

1.    It is dangerous to apply the interpretation given to one law to another without making the necessary adaptations; for this reason, a tribunal can refuse to even consider the interpretation given by case law of a different professional order.

2.    Even if the remorse and the regrets shown by the offender are clearly mitigating factors, this does not imply that their absence is an aggravating factor.

3.    The majority trend consists of considering the absence of remorse as a neutral factor that cannot, in itself, justify a harsher penalty that the one that would otherwise be appropriate.

4.    Having illegally qualified the absence of remorse as an aggravating factor cannot result in a judicial review when additional aggravating factors also justify the imposed penalty; in such a case, the error committed is not said to be an unreasonable error Dubé Légal inc., Montréal disciplinary law lawyers.